For
Your Information
Ombudsperson's Recommendations and Ministry of
Labour's Response
The report of the Office of the BC Ombudsperson
Severed Trust: Enabling WorkSafeBC to do the
right thing when its mistakes hurt injured
workers includes three recommendations.
One:
By April 1, 2022, the Minister of Labour propose
amendments to the Workers Compensation Act
to create a mechanism and a fund that will enable
WorkSafeBC to, on its
own initiative and at its sole discretion, provide
monetary
compensation to individuals who WorkSafeBC
concludes are grievously and
irreparably harmed by its own
mistakes.
Two:
By December 31, 2021, and while the proposed
changes to the Workers Compensation Act
are being developed, the Ministry of Labour
provide Mr. Snider with an
ex-gratia payment in recognition of the second
accident resulting in
the partial amputation of his hand, which occurred
because of
WorkSafeBC's mistakes in handling his
initial claim. The amount of the ex-gratia payment
is to be determined
by a retired judge of the Supreme Court of British
Columbia, applying
the common law for the assessment of damages,
taking into account
amounts paid or payable by WorkSafeBC.
Three:
The Ministry of Labour pay the reasonable legal
expenses incurred by Mr. Snider to make
representations to the retired judge.
The Response of the Ministry of Labour
Deputy Minister of Labour Trevor Hughes provided
a four page
response to the recommendations contained in the
Ombudsperson's
recommendations which is included in the report.
While expressing
concern for what Mr. Snider experienced and saying
that WorkSafeBC had
made changes to its policies and procedures, he
said, with
regard to the proposed legislative changes:
"The Ministry continues to have concerns....that
the
recommended legislative amendment is contrary to
foundational workers'
compensation principles, erodes the historic
trade-off and is
inconsistent with the intent of the immunity
clause in the Workers
Compensation Act. [...]
"Amending the Workers
Compensation Act
to add a mechanism for damages claims against the
Board for its
mistakes even where compensation is provided at
the sole discretion of
the Board would defeat the immunity clause which
courts have recognized
serves an important function in our society... the
Supreme Court of
Canada has
recognized that statutory immunity clauses serve
to preserve the
independence and impartiality of decision-makers,
keep decision-makers
focused on their work and limit routes of
collateral attack.... Many
British Columbia statues contain various forms of
immunity clauses that
protect persons exercising statutory power from
being sued for anything
done in the course of the exercise or purported
exercise of those
statutory powers."
Similarly, on recommendations two and three the
Ministry position is
that to implement these recommendations "would be
contrary to the
foundational principles of workers' compensation
and the immunity
clause as described above."
This article was published in
November 5, 2021 - No. 104
Article Link:
https://cpcml.ca/WF2021/Articles/WO081044.HTM
Website: www.cpcml.ca
Email: editor@cpcml.ca
|
